Denys Wibaux - Latest developments of the Legal work on terrorism in ICAO

Report
Latest developments of the Legal work on
terrorism in ICAO
Denys Wibaux
Montreal, 15 September 2007
Introduction
ICAO Aviation Security Conventions
• Tokyo Convention 1963 – 182 Parties
• The Hague Convention 1970 for the
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•
•
unlawful seizure of aircraft – 182 Parties
The Montreal Convention 1971 for the
suppression of unlawful acts against the
safety of aviation – 185 Parties
The Montreal Protocol for the suppression
of acts of violence at airports – 161 Parties
The MEX Convention 1991 on the marking
of explosives – 132 Parties
The 1970 Hague Convention
Major Achievements
A. Criminalization of Hijacking
B. Extradite or Prosecute Obligation
The Montreal Convention and
Its Protocol
A. Criminalization of Certain Acts:
Sabotage
B. Expansion of the scope of
application to the airports serving
international civil aviation
Review of the Conventions
• Assembly Resolution A33-1
• The Secretariat Study
• Very positive replies of States to a
questionnaire
• Secretariat Study Group
• The Special Legal Sub-Committee
Draft Amendments proposed by
the Sub-Committee
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Creation of new offences:
Incorporation of certain common
clauses in more recent
conventions
Proposed New Offences
• Using civil aircraft as a weapon
• Using civil aircraft to spread biological,
chemical or nuclear substances to cause
damage
• Use biological, chemical or nuclear
substances to cause damage
• Threats to commit an offence defined in
the Conventions
Incorporation of Common
Provisions in the UN Treaties
Punishment of the organizers and
directors of the offence
Exclusion of “the political offence
exception”
Military exclusion clause
 Fair treatment clause
Liability and Aviation War Risk
Insurance
• Globaltime
• Modernization of the 1952 Rome
Convention
Main features of the draft
• First layer: Limited and strict liability
of the carrier
• Second layer: The Supplementary
Compensation Mechanism (SCM)
• Third layer: Is left for the solidarity
inside a State or between States
Main features (cont’d)
• Geographical scope
* Accident occurs on the territory
of a State party
* Accident occurs on the territory
of a State non-party
* Opt-in for domestic accidents
Bones of contention
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•
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Breakability of limits
Inclusion of other entities
Maximum SCM limits
Pre or post funding
Advantages of a new
convention
• For the carriers:
* Legal certainty
* Limited liability
* Better insurability of the risk
• For the victims:
* Mandatory insurance for carriers
* Advance payments
* Intervention if necessary of a solvent
international fund
* Recognition and enforcement of judgements
For All:
Stability of the air transport system (exclusive remedy
clause)
Next Steps of the Work
• Legal Committee – it is open to all
ICAO member States
• If the texts are mature, diplomatic
conference to adopt new instruments

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